A “take no prisoners” approach in litigation can work but what message does it ultimately send? To hear industry reps, recent triumphs against California’s efforts to regulate violence in videogames should blast the word summarized in a certain state’s motto: Don’t tread on us. Especially since, the video gamers say, it will be state taxpayers footing a $1.3 million tab for court costs as part of a curious end to a recent case that advocates say established the First Amendment aspects of a popular electronic entertainment.The Entertainment Software Association, of course, has hastened to let everyone know that California officials have settled with them, agreeing recently to pay $950,000 in court costs, sought by the video game industry group in a relatively rare legal move. As has been pointed out previously, litigants in cases that reach the U.S. Supreme Court can seek to recover costs, though most don’t.

The videogamers did, filing motions that described in some eyebrow-raising detail just how pricey counsel can be in cases that soar to the appellate level and above. The industry, among other things, told the high court that it successfully had pursued similar motions for legal costs at the trial court level ($276,000) and before the Ninth Circuit Court of Appeals ($94,000).

After beating back 2005 legislation introduced by a San Francisco lawmaker and backed by Gov. Arnold Schwarzenegger in last fall’s Brown v. EMA/ESA case before the Supreme Court, the video game industry underscored for its opponents the potential costs of attempting to impose regulations on it with the motions for recovery of court costs, including $24,000 for a moot court-style rehearsal of the case with former Solictors General.

Industry advocates hasten to argue that the state’s regulatory efforts were so ill-founded that even a cursory look at case law should have shooed California legislators away from their attempt. They point, for example, to the precedent of constitutional protections afforded to video game content in Video Software Dealers Ass’n v. Webster, 968 F.2d 684 (8th Cir. 1992), where a statute including violent material in its definition of “obscenity” ruled was ruled unconstitutional. The definition of obscenity by courts generally has been limited to material depicting or describing sexual or erotic conduct. The Webster ruling foreshadowed the idea that when seeking to regulate video games, the courts have declined to expand the definition of obscenity to include materials depicting violence.

Further, in First Amendment cases, attempts to regulate speech are subjected to strict scrutiny and legislation on video games would face this rigorous review. It insists a law must be narrowly tailored to achieve a compelling state interest. Courts employing this test struck down as unconstitutional a St. Louis ordinance  in Interactive Digital Software Ass’n v. St. Louis County, Mo., 329 F.3d 954 (8th Cir. 2003)  in which burghers had sought to make it unlawful for minors to play violent video games without their parent’s consent. Likening video games to other forms of free expression, the Eighth Circuit Court said “these ‘violent’ video games contain stories, imagery, ‘old age themes of literature’ and messages, ‘even an ideology,’ just as books and movies do,”

Then, California authorities also could have taken in Entertainment Software Ass’n v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005). This case dealt with Illinois’ two statutes to prohibit the sale or rental of “violent” video games to minors. These measures also required that “violent” games be emblazoned with an age restriction:  a 2-by-2-inch, white “18” outlined in black. The statute prohibited the sale or rental of “sexually explicit” video games to minors.

U.S. District Judge Matthew Kennelly tossed all these measures as unconstitutional and enjoined their enforcement on First Amendment grounds.

In Entertainment Software Ass’n v. Foti, 451 F.Supp.2d 823 (M.D. La. 2006), the court preliminarily enjoined enforcement of a Louisiana statute prohibiting the sale or rental to minors of video games or computer games that “appeal to a minor’s morbid interest in violence,” on both First Amendment and vagueness grounds. And in Entertainment Software Ass’n v. Swanson, 519 F.3d 768 (8th Cir. 2008) the court held that a Minnesota law banning minors from renting or purchasing violent video games was unconstitutional. Here the court cited Interactive Digital Software Ass’n v. St. Louis County, saying it was bound by this precedent and it ruled again for the videogame industry using First Amendment protections and strict scrutiny review.

These cases underscore that when California lawmakers acted, they did not do so in a vacuum. The widening legal precedents shows both that politicians across the country felt the impetus to curb video game violence that touched the lives of minors, even as the court cases warned them that regulatory measures would be risky and likely to fail legal tests. And as both the videogame industry and its opponents know — the legal battles appear likely to continue.

There’s more on this matter: see this article and for more on how California lost this battle, see this article.

As a last word, at least on the case fees coughed up by the Golden State: the video gamers say that some of that cash will underwrite an after-school program in underserved areas of Oakland and Sacramento. The group does not say how much its lawyers will be paid.